CASA EX36/24 — Carrying Out and Supervising Maintenance (Ex-Armed Forces, Historic and Replicas of Class B Aircraft) Instrument 2024

The instrument relies on several defined terms that are either given in section 3 or are imported from the Civil Aviation Act 1988, the Civil Aviation Regulations 1988 (CAR), the Civil Aviation Safety Regulations 1998 (CASR) and the CASR Dictionary. The central concept is a relevant class B aircraft, which means an ex-armed forces aircraft, an historic aircraft, or a replica of a class B aircraft, provided that the aircraft is operated under a limited category certificate or an experimental certificate. This restriction is significant: not all ex-armed forces, historic or replica aircraft are covered; only those operated under those specific certificates. An ex-armed forces aircraft is defined in the regulations as a former military aircraft, while an historic aircraft is defined as an aircraft that because of its historical significance is eligible for an experimental certificate or a special certificate of airworthiness. The carrying out of maintenance on an aircraft is given the meaning in Part 3 of the CASR Dictionary, which encompasses performing maintenance tasks as distinct from certifying maintenance. Supervising, in relation to maintenance being carried out, also takes its meaning from Part 3 of the CASR Dictionary, which defines it in terms of direct or general supervision as applicable. A key concept is the coverage of a supervisor’s authority. For an aircraft welding authority, coverage is determined by section 4(2): the authority covers the maintenance if it is issued for the type of manual welding and the parent metal group appropriate to that kind of maintenance. The instrument notes that under paragraph 33D(6)(a) of CAR, CASA must note those details on the authority when granting it. For an airworthiness authority, the term is used in the regulations to refer to an authority issued under CAR Part 3, Division 3. For an authorisation under subregulation 42ZC(6) of CAR, the instrument does not further define coverage but uses the concept of an authorisation that covers the maintenance. The instrument also distinguishes between different kinds of airworthiness authorities, particularly those issued under paragraph 3.2 of Civil Aviation Order 100.24, which may be limited to a particular class B aircraft or a type, series or group of aircraft, engines, systems or installations. This distinction triggers a special condition in section 6. The concept of exemption is used in sections 5, 6 and 7: each exemption is from a specific subregulation of CAR and only to the extent that the subregulation requires the supervisor to meet a condition that prohibits them from supervising a person authorised under subsection 4(1). The exemption does not remove other conditions on the authority; it only targets the prohibition on supervision.

This instrument directly affects three categories of persons. First, it affects persons who wish to carry out maintenance on a relevant class B aircraft (ex-armed forces, historic or replica class B aircraft operated under a limited or experimental certificate). Without the authorisation in section 4, those persons would need to hold their own maintenance authority under CAR or CASR, or would need to be covered by some other exemption. The instrument enables them to perform maintenance provided they act under the supervision of one of the specified authority-holders. Second, it affects supervisors who hold either an aircraft welding authority, an airworthiness authority, or an authorisation under subregulation 42ZC(6) of CAR. These supervisors gain the benefit of exemptions from conditions that would otherwise prevent them from supervising the persons authorised under section 4. However, the instrument also imposes a new condition on supervisors who hold an airworthiness authority issued under paragraph 3.2 of Civil Aviation Order 100.24 in respect of a particular class B aircraft or category: they may only supervise maintenance on the particular aircraft, type, series or group for which their authority was issued. Third, the instrument indirectly affects owners and operators of relevant class B aircraft. Because the instrument facilitates a source of labour for maintenance, it affects their ability to obtain maintenance services for these specialist aircraft, which may have limited support networks. The instrument also affects CASA itself, as the maker of the instrument under delegation, and as the body responsible for issuing the underlying authorities (aircraft welding, airworthiness, section 42ZC authorisations). Additionally, the instrument may affect persons who hold airworthiness authorities that are not issued under paragraph 3.2 of CAO 100.24; they do not attract the extra condition in subsection 6(3) and therefore have broader supervisory scope under the exemption. Finally, the instrument’s temporal limitation affects anyone relying on it: after repeal (by Part 43 commencement or 31 July 2027) the authorisation and exemptions will cease, and persons will need to revert to the default regulatory requirements.

The instrument creates both rights and duties, though the duties are largely implicit from the conditions that remain in place after the exemptions are applied. Right to carry out maintenance: Section 4(1) authorises a person to carry out maintenance on a relevant class B aircraft in Australian territory, provided two conditions are satisfied. The maintenance must be carried out under the supervision of a person who holds an aircraft welding authority covering the maintenance (as per subsection 4(2)), an airworthiness authority covering the maintenance, or an authorisation under subregulation 42ZC(6) of CAR covering the maintenance. Additionally, the maintenance must be carried out in accordance with any conditions subject to which the authorisation was given, except to the extent that compliance with a condition is exempted under sections 5, 6 or 7. This means the person carrying out maintenance must comply with all conditions on the supervisor’s authority that are not specifically exempted. Right of supervisors to exemption from prohibitory conditions: Each of sections 5, 6 and 7 exempts the supervisor from a specific subregulation that would otherwise require them to comply with a condition prohibiting them from supervising the authorised person. Section 5 exempts from subregulation 33I(3) of CAR (for aircraft welding authorities), section 6 exempts from subregulation 33B(4) of CAR (for airworthiness authorities), and section 7 exempts from subregulation 42ZC(8) of CAR (for authorisations under that subregulation). However, the exemption only goes so far: it is limited to the extent that the subregulation requires compliance with a condition that prohibits the supervision. Other conditions on the authority (e.g., limits on the scope of maintenance tasks, or requirements for tools or facilities) remain in full force. Duty of airworthiness authority supervisors - the section 6 condition: For supervisors who hold an airworthiness authority issued under paragraph 3.2 of Civil Aviation Order 100.24 in respect of a particular class B aircraft or category, subsection 6(4) imposes a condition on the exemption itself. That condition prohibits the supervisor from supervising a person authorised under subsection 4(1) unless the person is performing a maintenance function on the particular aircraft, type, series or group for which the supervisor’s authority was issued. This is not a prohibition on supervision generally; it is a restriction on the scope of aircraft on which supervision can occur. If the supervisor’s authority is for a specific aircraft type (e.g., a particular historic aircraft), they cannot use the exemption to supervise maintenance on a different historic aircraft type. If the authority is for a group of engines, they can supervise maintenance only on engines within that group. Duty to ensure supervision: The person carrying out maintenance must in fact be supervised by a qualifying supervisor. The instrument does not define the level of supervision (direct or general) and that is left to the CASR Dictionary meaning of “supervising”. The supervisor must actually hold the authority and the authority must cover the maintenance. For welding authorities, coverage depends on the type of manual welding and parent metal group noted on the authority (section 4(2)).

This instrument itself does not create any penalty provisions. It is a legislative instrument that grants authorisations and exemptions under existing regulations. Therefore, enforcement of the scheme relies on the underlying regulations. If a person carries out maintenance under section 4 but fails to comply with a condition on the supervisor’s authority that is not exempted, that person may be in breach of subregulation 42ZC(6) of CAR because the authorisation is conditional on compliance with those conditions. Similarly, if a supervisor exceeds the scope of their exemption (for example, by supervising maintenance on an aircraft type not covered by the airworthiness authority under the section 6 condition), the supervisor is no longer covered by the exemption, and they may be in breach of subregulation 33B(4) or another applicable regulation. The instrument does not specify enforcement mechanisms, but under the Civil Aviation Act 1988, CASA can take administrative action including suspension or cancellation of authorities (aircraft welding authority, airworthiness authority, authorisation under subregulation 42ZC(6)) for breaches of conditions. Civil or criminal penalties may also apply under the Act and regulations for non-compliance with maintenance regulations, including carrying out maintenance without proper supervision or authority. The instrument’s exemption is limited - it only removes compliance with a specific prohibition condition; it does not exempt the supervisor from other regulatory obligations, such as the requirement to supervise properly or to ensure the maintenance is performed to the required standard. The instrument is also time-limited, which means that after repeal, any continued reliance would constitute unauthorised maintenance unless another exemption or authorisation applies. Persons relying on this instrument should be aware that the broader regulatory enforcement framework (including potential suspension or revocation of authorities by CASA) continues to apply. There is no provision for infringement notices or civil penalties specific to this instrument; it is the underlying CAR and CASR that carry enforcement teeth.

The instrument is made under three enabling powers: subregulation 42ZC(6) of CAR, and regulations 11.160 and 11.205 of CASR. Regulation 11.160 of CASR is a general power to grant exemptions from CASR and certain other instruments; regulation 11.205 is a power to impose conditions on exemptions. This explains the structure: the instrument uses subregulation 42ZC(6) to authorise the carrying out of maintenance (section 4), and then uses the CASR regulation-making powers to grant exemptions from specific CAR provisions (sections 5-7). The interaction with particular CAR subregulations is direct: section 5 exempts from subregulation 33I(3) of CAR; section 6 exempts from subregulation 33B(4); and section 7 exempts from subregulation 42ZC(8). Each of those subregulations would otherwise impose conditions on the respective authorities that would prohibit the supervisor from supervising a person authorised under the new section 4. The instrument also references Civil Aviation Order 100.24. Section 6(3) identifies a subset of airworthiness authorities - those issued under paragraph 3.2 of CAO 100.24 in respect of a particular class B aircraft or category - and imposes an extra condition on the exemption for those supervisors. This means that the instrument interacts with the CAO framework to create a differential treatment based on how the airworthiness authority was issued. The instrument also interacts with the CASR Dictionary by importing the definitions of “carrying out maintenance on an aircraft” and “supervising” from Part 3 of that dictionary, which aligns the terminology with the broader CASR maintenance regime under Part 43 (when it commences) and existing Part 145. Importantly, the instrument is expressly temporary: it is repealed at the earlier of the commencement of Parts 1 and 2 of Schedule 1 to the Civil Aviation Legislation Amendment (Part 43 - Maintenance of Aircraft) Regulations 2024, or 31 July 2027. Once those Parts commence, the new Part 43 will govern maintenance, and the need for this specific instrument may be superseded. The instrument does not interact with state or territory laws; it is purely a Commonwealth aviation safety instrument. It does not purport to affect other Commonwealth laws such as the Work Health and Safety Act 2011, though those would apply independently. Practitioners should note that the instrument does not override any conditions on airworthiness authorities that stem from sources other than the specified subregulations; those other conditions (e.g., from the authority itself or from other parts of CAR or CASR) remain fully operative.

The instrument is CASA EX36/24, made on 28 August 2024 and registered on an unspecified date that is the day before it commences. It is a new instrument in the CASA EX series, and there is no amendment history provided in the source text. The instrument contains no amending provisions or schedules that modify earlier instruments. Its duration is fixed by self-repeal provisions in section 2, which set two alternative repeal events: the commencement of Parts 1 and 2 of Schedule 1 to the Civil Aviation Legislation Amendment (Part 43 - Maintenance of Aircraft) Regulations 2024, or the end of 31 July 2027, whichever occurs first. This means the instrument has a maximum lifespan of less than three years from its commencement (which is the day after registration in late August 2024, so until at most 31 July 2027). If the Part 43 amendments commence earlier, the instrument will be repealed earlier. The instrument does not amend any other legislative instrument; it is a standalone exemption and authorisation instrument. It is possible that CASA may issue a subsequent instrument to vary or replace EX36/24 before its repeal, but no such instrument is referenced. For the purposes of this deep dive, the amendment history is nil: no amendments have been made to this instrument since its making. Anyone relying on the instrument should monitor the Federal Register of Legislation for any amending instruments or for the commencement of the Part 43 amendments that will trigger repeal.

The source text for CASA EX36/24 provides no information about any litigation history. The instrument was made on 28 August 2024 and at the time of this writing is relatively new. It is a legislative instrument at the level of a CASA exemption, which is not typically the subject of direct litigation; challenges would more likely target the underlying regulations or CASA decisions to refuse, suspend or cancel authorities. Because the instrument grants exemptions and authorisations, any legal challenge would likely come from a person who was denied the benefit of the instrument (e.g., CASA refusing to accept that a particular supervisor falls within the exemption) or from a person alleging that CASA exceeded its power in making the instrument. No such cases are reported or referenced in the source. The instrument is also temporary, which reduces the window for litigation. Practitioners should search the Administrative Appeals Tribunal decisions and Federal Court judgments for any cases involving CASA EX36/24 or its predecessor instruments (if any) that covered similar ground for class B aircraft. However, as a matter of grounded analysis, there is no litigation history to report from the source. The instrument itself refers only to CAR and CASR provisions; it does not mention any court or tribunal proceedings.

Several aspects of the instrument could trip up practitioners who assume it provides a blanket authorisation. First, the definition of relevant class B aircraft is narrower than it appears. The aircraft must be operated under a limited category certificate or an experimental certificate. Many ex-armed forces, historic or replica aircraft might hold standard certificates of airworthiness or special certificates that are not experimental; those aircraft are not covered. Second, the authorisation under section 4(1) is conditional: the person carrying out maintenance must do so under the supervision of a person who holds one of the three authorities, and must comply with any conditions on that authority except to the extent exempted. A supervisor’s authority may have multiple conditions; the exemptions only remove the specific prohibition on supervising a person authorised under section 4(1). Other conditions (e.g., limitation to specific tasks, requirement for specific tools, or supervision ratios) remain and must be followed. Third, the aircraft welding authority exemption in section 5 only exempts from subregulation 33I(3) of CAR. That exemption does not remove the requirement that the welding authority must cover the maintenance under section 4(2) - i.e., the type of manual welding and parent metal group must be appropriate. If the supervisor’s welding authority does not list the relevant welding type or metal group, the coverage condition is not met and the authorisation under section 4 cannot be used. Fourth, the condition in section 6(4) for airworthiness authority holders issued under paragraph 3.2 of CAO 100.24 is a trap. Only supervisors with that specific kind of airworthiness authority are subject to the extra condition; those with airworthiness authorities issued under other paragraphs of CAO 100.24 or under other provisions are not subject to the condition and can supervise any relevant class B aircraft. Practitioners must check the terms of the airworthiness authority to see if it was issued under paragraph 3.2. Fifth, the exemptions only apply to the extent that the subregulation requires compliance with a condition that prohibits the supervisor from supervising the person authorised under subsection 4(1). If the condition is worded differently (e.g., “the supervisor must not supervise maintenance unless they have completed a particular course”), it may not be a prohibition on supervising an authorised person, and the exemption would not apply. The language must be examined carefully. Sixth, the instrument applies only in Australian territory, as stated in section 4(1). Maintenance outside Australian territory (e.g., on a historic aircraft visiting another country) is not covered. Seventh, the instrument is temporary. Relying on it beyond its repeal date (31 July 2027 or earlier) would be unlawful. Entities should have contingency plans for when the instrument expires. Eighth, the instrument does not address the certification of maintenance. The person carrying out maintenance under section 4 is not necessarily authorised to certify that maintenance under CAR or CASR. Separate provisions govern who can release an aircraft to service after maintenance. Finally, the definitions of “carrying out maintenance” and “supervising” are imported from Part 3 of the CASR Dictionary, which may have nuances that differ from common understanding. Practitioners should consult those definitions directly.

To rely on this instrument, a person or organisation should follow a structured process. Step one: confirm that the aircraft in question is a relevant class B aircraft as defined in section 3. It must be an ex-armed forces aircraft, an historic aircraft, or a replica of a class B aircraft, and it must be operated under a limited category certificate or an experimental certificate. Check the aircraft’s certificate of airworthiness or operating limitations. If it holds a standard certificate of airworthiness or a special certificate other than experimental, the instrument does not apply. Step two: identify the maintenance task to be performed. Determine whether it falls within the scope of “carrying out maintenance” as defined in Part 3 of the CASR Dictionary. Step three: select a supervisor who holds one of the three specified types of authority: an aircraft welding authority, an airworthiness authority, or an authorisation under subregulation 42ZC(6) of CAR. For aircraft welding, check that the authority is issued for the required type of manual welding and parent metal group (section 4(2)). For airworthiness authorities issued under paragraph 3.2 of CAO 100.24, verify that the authority is for the particular aircraft, type, series or group of aircraft, engine, system or installation on which the maintenance will be performed (section 6(4)). If the authority is not issued under that paragraph, no such limitation applies (but other conditions still may). Step four: examine all conditions on the supervisor’s authority. Identify any condition that prohibits the supervisor from supervising a person authorised under section 4(1). Only those conditions are exempted by sections 5, 6 or 7. All other conditions remain binding and must be complied with. For example, if the authority limits the supervisor to certain tasks or requires certain equipment, those limitations must be observed. Step five: ensure that the person carrying out maintenance is actually supervised by the qualifying supervisor. The meaning of “supervising” comes from the CASR Dictionary - it may require direct physical presence or general oversight depending on the context. Document the supervision arrangement. Step six: maintain records demonstrating the authority of the supervisor, the scope of the authority, the aircraft details, the maintenance tasks performed, and compliance with all non-exempted conditions. These records will be essential if CASA audits or investigates. Step seven: monitor the duration of the instrument. Check the Federal Register of Legislation regularly for the commencement of the Civil Aviation Legislation Amendment (Part 43 - Maintenance of Aircraft) Regulations 2024, as that will repeal the instrument early. Also note the 31 July 2027 expiry date. Plan alternative compliance pathways (e.g., obtaining own maintenance authority, using a different exemption) before repeal occurs. Step eight: if the supervisor holds an aircraft welding authority, remember that the exemption only covers the prohibition condition; the welding authority must still be valid and the supervisor must be competent in the specific welding type. If the supervisor holds an authorisation under subregulation 42ZC(6), the exemption only applies to conditions that prohibit supervision of a person authorised under section 4(1); other conditions on that authorisation remain. Step nine: do not assume that the instrument covers certification or release to service. Separate regulatory requirements under CAR or CASR (such as the issue of a maintenance release) must be satisfied by a person appropriately authorised to certify maintenance. The instrument does not provide that authority. Step ten: seek legal or regulatory advice if there is any doubt about the scope of the supervisor’s authority or the applicability of the exemptions. The instrument is recent and untested, so conservative compliance is advisable.